AILA GMS Spotlight Interview Series
1. How is the practice of immigration regulated in your country? Do you have immigration specific law(s)?
Immigration laws in Brazil were recently changed and as of November 21, 2017 are governed by Law No. 13,445/17, regulated by Decree No. 9,199/2017. Additional norms will be issued by different Ministries (Justice, Foreign Relations and Labor), as needed.
The National Council of Immigration issued 12 new Normative Resolutions regulating the temporary visas and authorization of residence to work on December 8, 2017 and more are expected in the coming weeks.
2. Does your jurisdiction have any quotas or other general requirements, such as registrations of a company, to be able to send employees?
Article 354 of the Brazilian Labor Code (“CLT”) promulgated in 1943 requires at least 2/3 of the employees must be Brazilian (also known as the “Law of 2/3”). The Brazilian Federal Constitution promulgated in 1988 guarantees no discrimination between Brazilians and foreigners resident in Brazil.
For purposes of the Law of 2/3, foreign nationals who have been living in Brazil for 10 years or more and are married to a Brazilian citizen or have a Brazilian child, Portuguese citizens irrespective of any other individual situation, and nationals of the MERCOSUL countries who live in Brazil with a residency granted under the MERCOSUL Agreement, are counted as Brazilians.
When hiring foreign nationals, each company must respect the “Law of 2/3”, i.e.:
(i) the total sum of the salaries earned by the Brazilian workers must correspond to at least double the total sum of the salaries received by the foreign workers; and
(ii) there must be at least two (2) Brazilian workers for every foreigner hired.
Currently, there is no registration requirement for a company to hire any foreigners.
3. Please describe the basic immigration process for a business wanting to send an employee on an intracompany transfer.
a. How does your jurisdiction define an intra-company transfer?
There is no specific definition of an intra-company transfer. All transferred employees are subject to the local labor legislation depending on the type of visa which decides whether or not a local employment agreement will be required.
b. Are there any pre-requisites?
Normative Resolutions 1 and 2, of December 8, 2017 define the pre-requisites for visas.
Foreign nationals applying for a temporary visa or a residence permit to work under an employment contract must prove that they have education, qualification and professional experience compatible with the function to be exercised in Brazil. Education and qualification are evidenced by diplomas and/or certificates or experience in lieu of a college diploma [a minimum of twelve (12) years of study and four (4) years of experience].
Candidates whose, artistic or cultural, activities do not depend on formal education a minimum experience of three (3) years in the exercise of the profession must be proven.
Professional experience may be evidenced by a letter or any other means admitted by law, supporting a minimum experience of three (3) years for medium-level candidates, two (2) years for candidates who hold a bachelor’s degree and one (1) year who have attended a post-graduate course with a minimum of 360 class-hours. Holders of master’s or Ph.D. degrees, do not need to submit letters of experience.
All documents issued overseas must be legalized either through apostille, for those countries that are under The Hague Convention of October 5, 1961, or, for other countries, notarized and legalized by the Brazilian Consulate where the documents were issued. After the legalization process the documents must be translated in Brazil by a sworn public translator.
c. Is a local employment contract required?
This will depend on the function, duties and length of the assignment for which the company intends to bring the employee.
d. How long is the permit generally valid and can it be extended?
The term of the temporary visa and residence permit will be up to two (2) years, and it may be extended, or transformed. Requirements for the renewal and transformation will be published in a future Normative Resolution.
e. What are the average processing times?
The legal processing time for a prior authorization of residence for a temporary visa and residence permit to work is set at thirty (30) days under the new legislation. For visa issuance the average processing time is five (5) business days but will vary with the consular workload.
f. Can the employee bring dependents? If so, are there any pre-requisites.
Yes, employees can bring dependents and they are eligible to work. To obtain a dependent visa, it is mandatory to provide evidence of the relationship by submitting birth certificates, marriage certificates, stable union documents, as well as any additional documents required by the immigration authorities. All foreign documents must meet the legalization and translation process described above. Ministry of Foreign Affairs will advise through an act when these documents must be submitted.
4. Does your jurisdiction allow a company to send newly hired employees?
Yes, Brazil allows a company to send newly hired employees and the same rules regarding the pre-requisites, local employment contracts, validity period, processing times, document legalization processes as well as rules for dependents apply as above.
5. Do partners or same sex spouses qualify for dependent status in your jurisdiction?
Yes, partners or same sex spouses qualify for dependent status in our jurisdiction.
a. What is the age limit for children?
Under the new law and decree there is no age limit for children.
b. Can parents accompany as dependents or must they seek independent status?
Under the new law and decree parents remain eligible for a dependent visa.
6. What advice would you give a client thinking about sending employees to your jurisdiction? Are there any tips you might want to share (e.g. select employees with a university degree if possible, etc.)?
Clarity on an employee’s assignment, position and role in Brazil is critical to define the best type of temporary visa, or residence permit to work in Brazil. Recent changes in the Brazilian Labor Code may have a direct impact on the most appropriate temporary visa, or residence permit for the employee and the employer. Prior to sending an employee to Brazil, it is advisable to have a Brazilian labor and immigration attorney review the offer letter to define the best course of action to avoid future liabilities.
7. Are there any hot topics or trends you wish to share?
On November 21, 2017, both the Migration Law No. 13,445/2017, as well as Decree No. 9,199/2017, which regulates said law, entered into effect. The new law provides for the rights and duties of migrants and visitors and regulates their entry and stay in Brazil. In addition, it establishes the principles and guidelines for public policies for the emigrant.
Additional Normative Resolutions are expected in the coming weeks and till their publication the filing and analysis of specific applications is temporarily suspended.
The new Normative Resolutions will regulate the requirements for a visitor to apply for a residence permit to work in Brazil without having to go to a Consulate abroad to apply for a work visa, as was required in the past.
In addition, under the terms of the new law, regardless of one’s immigration status, the migrant may apply for a residence permit in case he fulfills the requirements to obtain it (including having a work offer), thereby regularizing his migratory condition.
The most significant changes introduced by the new law are:
- The creation of a visitor's visa, which includes different types of visas (tourism, business, transit, artistic activities and sports of short duration, without employment relationship in Brazil), provided for in the previous legislation;
- The creation of humanitarian reception and health treatment visas, previously only granted on the basis of resolutions of the National Council of Immigration;
- In the hypothesis of strategic professional capacities for Brazil, to be defined by a joint act of the Ministries of Justice, Labor and Foreign Affairs, subject to consultation with the National Council of Immigration, the waiver of an employment offer prior to obtaining a residence permit, provided that the migrant has a bachelor’s diploma or equivalent degree;
- The extinction of the permanent visa and the creation of the residence permit;
- The possibility of requesting and issuing visas electronically. As of now, available only to Australians [as of November 21, 2017], Japanese [as of January 11, 2018], Canadians [as of January 18, 2018] and U.S. citizens [as of January 25, 2018)]; and
- The need to obtain a prior authorization residence to work, before applying for a temporary work visa, or residence permit.